Ending Supreme Court Life Tenure

There are many critics of the Constitution’s guarantee of life tenure for federal judges and especially for the Justices. They point out that most nations with an independent judiciary give their judges long but defined terms. So do most of our states. The current system, by contrast, allows the Justices to time their retirements in a political way, subject only to the unwritten rule that they not retire in a presidential election year. Moreover, life tenure gives both parties a strong incentive to nominate young judges who will be on the Court forever.

How can this be changed? Short of a constitutional amendment (which will not happen), the only realistic answer is that a norm would have to emerge among the Justices that they should retire after a certain term. (There is a complex proposal for a statute that would impose term limits on the Justices while preserving their life tenure as judges, but that isn’t going anywhere either.) After all, George Washington could have won a third term in 1796, but he chose not to and thereby established a powerful custom for a two-term limit.

Why would the Justices adopt such a practice? I can think of one reason. The next time different parties control the Senate and the White House, getting a Justice confirmed is going to be really challenging. Imagine in that situation that a nominee sits before the Senate Judiciary Committee and says “I pledge to the American People that I will retire in ten years.” That might allow the nominee to be confirmed, and it would be most difficult for that Justice to repudiate that pledge ten years later. Once that precedent is established, the next nominee would find it hard not to make a similar pledge.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

3 Responses

If Ginsburg retires in the end of the ’14 term, e.g., I want to see a true very hard confirmation process w/o usage of some honestly controversial nominee ala Bork. There are people saying the Republicans would actually block Obama from confirming someone. Really? So eight justices for two years? I want to see it actually happen.

But, I actually can imagine it being hard enough or actually believes a limited term is enough for him or her anyway that a nominee might promise to retire in a set number of years. 10 years sounds a bit too little though. I also see, if Obama actually has a chance, a push for someone 60 or so at least, a de facto limit of sorts. But, I think something really serious has to happen first to guarantee it.

How many members of Congress have gotten elected on self imposed term limit pledges, only to claim changed circumstances, and a run for an additional term. Without having to face voters, judges and justices could get away with this much more easily, increasing cynicism, but not much else.